You have asked for advice on whether a valid marriage exists between the number holder,
E~, and the claimant, J~ . As we understand the facts of the case, J~ contends that
her first undissolved marriage to R~ was void for bigamy based on his prior marriage
to E~ , and that therefore her subsequent marriage to M~ is still valid. Based on
the current factual record, we cannot draw any conclusion but have outlined possible
outcomes depending on what is uncovered in further development of the facts.
J~, formerly J~ , married R~ in New York on December 3, 1954 in a ceremony solemnized
by clergyman, Reverend John (Ex. 1). In the December 2, 1954 Affidavit for License
to Marry, R~ indicated that he had never been married and never been divorced (Ex.
2). In addition, J~ and R~ listed New York as the place of their residence. According
to M~'s statement to the Social Security Administration ("SSA"), J~ and R~ had three
children together (Ex. 3). There is no further information in the record regarding
the duration or character of the J~-R~ marriage.
J~ attested to the City Magistrate of New York City on September 23, 1958 that R~
committed bigamy by marrying her when he was still married to E~ (Ex. 4). The record
does not indicate when J~ first became aware of R~'s prior marriage to E~. R~ subsequently
pled guilty on January 21, 1959 to perjury in the second degree (under New York Domestic
Relations Law § 16 and punishable under New York Penal Law § 210.10) (Ex. 5).
In M~'s letter to the SSA, he stated that J~ told him she had never divorced "Alan
" (Ex. 6). According to M~, J~ and he met with an attorney, Anthony , to procure a
divorce for J~ in preparation for their own wedding (Ex. 3). Attorney Anthony advised
them that a divorce would be unnecessary as the marriage with R~ was void because
of R~'s bigamy. M~ testified that on the strength of Anthony's advice, J~ did not
divorce R~ and that both he and J~ entered into their marriage believing that the
marriage was legal. This is consistent with J~'s statement to the SSA that when she
married M~, she was free to marry and that M~ knew it (Ex. 7).
On July 16, 1962, in her sworn Application for Marriage License, J~ listed her name
as "J~ " and noted that she had never been married (Ex. 8). M~ listed the fact of
his prior marriage and grant of divorce on June 17, 1958 by Judge S. Bob . in the
Circuit Court of Winston County, Alabama (Id.).
As to M~'s prior marriage, your records reference a marriage between M~ and T~ September
18, 1950 in Brooklyn, New York and a divorce on June 15, 1958 in Birmingham, Alabama
(Ex. 9). The record does not contain copies of the marriage license or certificate.
On his application for a license to marry Ellen, M~ identified only T~ as a prior
wife and that she was alive at the time of the application (Ex. 10). He further listed
incompatibility as the grounds for divorce and noted the date of divorce as June 2,
1958. Your records, however, contain a copy of the Report of Divorce between M~ and
T~ filed with the Alabama Department of Health (Ex. 11). That report lists the date
of their marriage as September 27, 1950 and the date of the final decree of divorce
as June 17, 1958. The divorce decree indicated that the divorce was granted to T~
on the grounds of abandonment and that at the time of the divorce they had one child
under eighteen years. The divorce decree contained no information regarding M~'s place
of residence. Similarly, for T~, the divorce decree provided no information on her
city or county of residence and only listed "Ala." as her state of residence. No judge's
signature appears on the divorce decree. The divorce decree is signed by Dorothy ,
State Registrar, but the date of her signature appears to be June 19, 1995. Your records
show no social security number for T~ (Ex. 9).
On July 21, 1962, M~ married J~ in Union City, New Jersey in a ceremony solemnized
by Judge Frank (Ex. 8). Although they married in New Jersey, both M~ and J~ listed
New York as their place of residence on the Application for Marriage License. The
J~-M~ marriage produced no children, and J~ and M~ subsequently separated (Ex. 3).
M~ stated that they separated in 1964 (Ex. 3), while J~ asserted that they separated
in the late 1960s (Ex. 7). M~ testified that prior to his current marriage to Ellen
, he consulted attorney Anthony about obtaining a divorce from J~ (Ex. 3). According
to M~, told him that securing a divorce would be unnecessary as the marriage was void
for J~'s bigamy in failing to divorce R~ prior to marrying M~. M~ testified that based
on Anthony's counsel, he married Ellen on August 7, 1965 without first divorcing J~.
Your records confirm that M~ married Ellen on August 7, 1965 in Brooklyn, New York
While M~ asserted that he had no further contact with J~ after their separation in
1964 (Ex. 3), J~ stated in her claim to the SSA that M~ informed her of his plans
to marry Ellen (Ex. 7). J~ stated that when she told M~ to get a divorce first, he
made no comment and drove off. She reported never receiving any divorce papers from
M~ filed for retirement benefits in November 1991 (Ex. 3). He claims that because
he knew his marriage to J~ was bigamous and "not legal," he did not list J~ on his
benefit application and that the SSA erred in finding that he had (Id.). However, your office has confirmed that M~ listed J~ as a prior spouse, indicating
that they married on June 19, 1962 and that their marriage ended on January 15, 1963
(Ex. 9). Your office has also confirmed that Ellen is in current payment status as
the spouse on M~'s record. J~ has filed an application for spouse's benefits, claiming
she is M~'s legal spouse. We understand from your office that M~ was residing in Florida
at the time J~ filed her application.
In examining wife's benefit claims, the SSA will look to the laws of the State where
the insured had a permanent home at the time his wife applies for wife's benefits.
20 C.F.R. § 404.344. If the spouses were validly married under State law at the time
of the wife's application for benefits, the relationship requirement will be met. Id. In this case, M~ was domiciled in Florida at the time J~ filed her application for
wife's benefits. As such, we must determine whether Florida would recognize the existence
of a valid marriage between J~ and M~.
Under Florida law, the validity of the marriage between J~ and M~ would be evaluated
with reference to the law of the state in which the marriage was contracted. See Franzen v. E.I. DuPont de Nemours & Co., 146 F.2d 837, 839 (3d Cir. 1944)(holding that in determining the validity of a marriage,
reference will be made to the "law of the place where it is contracted.... And, if
valid according to the law of the State where contracted, a marriage is to be regarded
as valid in every other jurisdiction")(citations omitted). Thus, under Florida law,
the marriage between J~ and M~ will be considered valid if it is valid under the law
of New Jersey, where the marriage was contracted.
1. The Effect of the J~-R~ Marriage on the J~-M~ Marriage:
Under New Jersey law, a valid ceremonial marriage is contracted when the parties properly
obtain and deliver the marriage license to the officiant prior to the ceremony (see N.J.S.A. 37:1-2), and the marriage is solemnized by a judge. See N.J.S.A. 37:1-13. Here, because J~ and M~ properly obtained and delivered their marriage
license prior to having the marriage solemnized by Judge Frank, New Jersey would normally
recognize that J~ and M~ entered into a valid ceremonial marriage on July 21, 1962,
especially since neither J~ nor M~ instituted divorce proceedings against each other.
To establish eligibility for spousal benefits, presentation of a copy of the public
record of marriage normally constitutes preferred evidence of a valid ceremonial marriage,
such that no further evidence of the same fact will be necessary. 20 C.F.R. §§ 404.709,
404.725(b)(2). Moreover, New Jersey recognizes a strong presumption supporting the
validity of the latest of two successive marriages involving a common participant.
Prater v. Aftra Health Fund, 23 F.Supp.2d 505, 508 (D.C.N.J. 1998); Kazin v. Kazin, 405 A.2d 360, 366, 81 N.J. 85, 96 (1979); see also POMS GN00305.035. Thus, it facially appears that J~'s marriage to M~ is presumptively
The record, however, contains additional information indicating that J~ was already
validly married to R~ at the time she married M~. New Jersey accepts the common law
proposition that "[c]ivil disabilities, such as a prior marriage, … make the contract
of marriage void Ab initio and not merely voidable." Minder v. Minder, 83 N.J.Super. 159, 164, 199 A.2d 69, 71 (Ch.Div. 1964); see Hansen v. Fredo, 123 N.J.Super. 388, 389, 303 A.2d 333, 333 (Ch.Div. 1973). Because a void marriage
is a legal nullity, a judgment of nullity is not required to render the marriage void.
M~, 83 N.J.Super. at 163, 99 A.2d at 71. J~'s marriage to M~ may be void, therefore,
because of J~'s possible bigamy.
Determining who has the burden of proving the validity of the J~-R~ marriage is the
critical issue in this case. Although New Jersey case law furnishes a burden-shifting
framework for determining the presumptive validity of subsequent marriages, the Social
Security Act authorizes the Commissioner to adopt reasonable and proper rules and
regulations regarding the nature and extent of proofs and evidence necessary to establish
the right to benefits. 42 U.S.C. § 205(a). SSA regulations clearly identify a claimant's
responsibilities for proffering convincing evidence to fulfill eligibility requirements
for benefits. 20 C.F.R. §§ 404.704, 404.708. In deciding whether evidence is convincing,
the SSA will look to whether "information contained in the evidence agrees with other
available evidence, including our records." 20 C.F.R. § 404.708(f). Here, the record
contains evidence of a valid ceremonial marriage between J~ and R~ as well as J~'s
testimony that she married R~ and never divorced him. Accordingly, this evidence conflicts
with the evidence of the validity of J~ and M~'s marriage, and J~ bears the burden
of proving that her marriage to R~, which J~ alleges was R~'s second marriage, was
void because of his bigamy.
a. The Presumption of Validity Attaching to the J~-R~ Marriage:
The record indicates that J~ married R~ in New York on December 3, 1954. Under New
York Domestic Relations Law, a marriage is valid if the parties to the marriage properly
obtain and deliver the marriage license prior to the marriage ceremony, see N.Y. Dom. Rel. Law § 13 (M~ 2003), and the marriage is solemnized by "a clergyman
or minister of any religion…." N.Y. Dom. Rel. Law § 11 (M~ 2003). Because J~ and R~
properly obtained and delivered their marriage license prior to having their marriage
solemnized by a clergyman, New York would normally recognize that J~ and R~ entered
into a valid, ceremonial marriage on December 3, 1954.
As with New Jersey, once a ceremonial marriage has been performed, New York recognizes
a strong presumption in favor of holding the latest of subsequent ceremonial marriages
valid. Grabois v. Jones, 89 F.3d 97, 100 (2d Cir. 1996); In re M~'s Estate, 150 A.D. 681, 683 (1st Dept. 1912); see also Seidel v. Crown Industries, 132 A.D.2d 729, 730, 517 N.Y.S.2d 310, 311 (3rd Dept. 1987) (stating that "the presumption
favoring the validity of the second marriage is stronger than the presumption that
the prior marriage continued"). Furthermore, the presumption of validity of the second
marriage becomes "stronger and stronger where a substantial injustice would be created
by invalidating that marriage." G~, 89 F.3d at 100; see Dolan v. Celebrezze, 381 F.2d 231, 237-38 (2d Cir. 1967) (finding that a review of New York case law
indicates that the presumption favoring the validity of the second marriage varies
in force with the attendant facts and circumstances). The court in noted that the presumption for validating subsequent ceremonial marriages in New York
operates to effectuate "a particular public policy such as upholding legitimacy, favoring
the participation in the decedent's estate of one who lived with him as his spouse,
and preserving the validity of a marriage where no strong public policy would be served
by doing otherwise." , 381 F.2d at 237; see also Boyd v. Heckler, 588 F.Supp. 31, 34-35 (E.D.N.Y 1984)(stating that "[c]hief among the equities to
be considered is whether there are children of the second marriage" in holding that
testimonial evidence, absence of divorce records, and no children in the second marriage
were sufficient to rebut the presumption of validity of the second marriage for purposes
of awarding widow's social security benefits).
In this case, it seems unlikely that a court would find that the balance of equities
tips in favor of invalidating J~'s marriage to R~. J~ and R~ entered into a ceremonial
marriage that allegedly produced three children. The presumption of validity will
be particularly strong here as the legitimacy of J~ and R~'s children may otherwise
be cast in doubt. Furthermore, no strong public policy would be served by permitting
J~ to void her marriage to R~ in order to obtain wife's benefits from M~, a man to
whom she was putatively married for only three years and with whom she had no children,
and who has been married to his current wife, Ellen, for thirty-nine years. On these
facts, New York will likely recognize the presumption of validity that attaches to
J~ and R~'s ceremonial marriage.
J~, however, does not dispute that she participated in a marriage ceremony with R~.
She contends that because R~ was previously married to another living woman at the
time of their marriage, her marriage to R~ was necessarily void under New York law.
New York Penal Law establishes that "a person is guilty of bigamy when he contracts
or purports to contract a marriage with another person at a time when he has a living
spouse, or the other person has a living spouse." See N.Y. Penal Law § 255.15 (M~ 2003). New York Domestic Relations Law states that "a
marriage is absolutely void if contracted by a person whose husband or wife by a former
marriage is living...." N.Y. Dom. Rel. Law § 6 (M~ 2003). Furthermore, because a void
marriage exists as a legal nullity, no judgment or judicial declaration of nullity
is required. U.S. v. Diogo, 320 F.2d 898, 907 (2d Cir. 1963); see also McCullen v. McCullen, 162 A.D. 599, 602, 147 N.Y.S. 1069, 1071-72 (1st Dept. 1914).
To rebut the presumption of validity on the grounds of R~'s bigamous act, J~ must
prove that, at the time of her marriage to R~, R~ and E~ had been validly married
and the marriage had not terminated by annulment, divorce, or E~'s death, even though
this might require the proof of a negative. Fishman v. Fishman, 48 A.D.2d 876, 877, 369 N.Y.S.2d 756, 758 (2nd Dept. 1975); Rappel v. Rappel, 39 Misc.2d 222, 225, 240 N.Y.S.2d 692, (Special Term 1963); Apelbaum v. Apelbaum, 7 A.D.2d 911, 911, 183 N.Y.S.2d 54, 54 (2nd Dept. 1959). Specifically, J~ must establish
that R~'s prior marriage to E~ was "valid" by disproving through clear and convincing
evidence "every reasonable possibility which would validate" the prior marriage. S~, 132 A.D.2d at 730, 517 N.Y.S.2d at 311. Under New York law, failure to uncover evidence
of a divorce or annulment in a diligent record search of all counties in which both
parties to the first marriage have resided will suffice to rebut the presumption.
Metropolitan Life v. Jackson, 896 F.Supp. 318, 321 (S.D.N.Y. 1995); see also In re B’~s Estate, 49 A.D.2d 648, 648, 370 N.Y.S.2d 262, 648 (3rd Dept. 1975), aff'd 40 N.Y.2d 938, 390 N.Y.S.2d 59, 358 N.E.2d 883 (1976) (holding that the "strong evidence"
of a certified statement as to a record search constituted prima facie evidence of
no record of divorce and outweighed the oral testimony of putative spouse and presentation
of an uncertified divorce decree); In re L~'s Estate, 30 Misc.2d 7, 8 (Surr.N.Y.Co.1960) (holding that the presumption of validity was
sufficiently rebutted on the basis of appellant's testimony that he never instituted
nor was served with any dissolution proceedings; no record of divorce in a search
of all five New York City boroughs in which decedent resided; and decedent's false
statement on her marriage license application that she had never before been married
or divorced); In re B~'s Will, 278 A.D.2d 658, 659, 102 N.Y.S.2d 577, 578 (2d Dept. 1951) (finding that, where
there were no children, the presumption was sufficiently rebutted on showing that
decedent's first husband was still alive at and after the second marriage had been
entered, and that decedent had falsely declared single status in executing her application
for the subsequent marriage license).
b. R~'s Indictment for Perjury and Possible Bigamy:
Based on the record, it can be reasonably inferred that R~ was initially charged with
bigamy for marrying J~ while he was still married to another living woman. He was
then indicted for perjury in the first degree. At the time of R~'s indictment, a conviction
for perjury in the first degree required materiality to the action or matter involved.
If he had been convicted of first degree perjury, then we might have assumed that
R~ falsely stated in his second marriage application that he was never before married
and never before divorced, and that but for his false attestation, no marriage could
have been contracted between J~ and R~. R~, however, was not convicted of first degree
perjury but pled guilty only to second degree perjury. In 1958, a conviction for perjury
in the second degree did not require materiality to the action at hand. Because second
degree perjury did not require materiality to the action, we may not assume that R~
admitted to having married E~ prior to marrying J~ and that his marriage to E~ was
still valid at the time he married J~. Accordingly, J~ may not rely on R~'s guilty
plea to perjury in the second degree as evidence of a valid marriage existing between
R~ and E~ at the time of J~'s marriage to R~.
Thus, J~ must present clear and convincing evidence that R~ was validly married at
the time of her marriage to him, and that his prior marriage had never been terminated.
Additionally, J~ must provide proof of a diligent search of all records in all counties
in all countries in which E~ and R~ resided to show that the marriage was never terminated.
SSA may assist her. If J~ is unable to carry her burden of proof, the presumption
of validity attaching to her marriage with R~ will continue, and she cannot receive
benefits on M~'s record.
2. Possible Invalidity of the M~-T~ Divorce:
Prior to his marriage to J~, the record indicates that M~ was married to, and divorced
from, T~. M~ and T~, however, may not have been validly divorced. If the grant of
divorce between M~ and T~ was not legitimate, then J~'s marriage to M~ would be void
and she could not receive benefits as M~'s spouse. Furthermore, we note that because
J~ and M~ did not reside together at the time of her application for spousal benefits,
J~ may not receive benefits as M~'s deemed wife. If further development of the facts
by the SSA establishes that the divorce between M~ and T~ was invalid, then J~ cannot
receive benefits as M~'s spouse because his marriage to T~ was never terminated. There
are no copies of a marriage certificate or application for a marriage license for
M~ and T~. Although your records contain a copy of M~ and T~'s divorce decree, it
is possible that the divorce decree may have been invalid, either because of jurisdictional
infirmities arising from T~'s failure to establish bona fide residence in Alabama
or because the divorce may have been fraudulently granted.
a. Issues of Jurisdiction
With respect to the issue of T~'s residency in Alabama, the Alabama Supreme Court
has explicitly held that "Alabama courts have no jurisdiction over the marital status
of parties if neither is domiciled in Alabama, and such jurisdiction cannot be conferred
on the courts, even with the parties' consent." Winston v. Winston, 279 Ala. 534, 537 (1966) (reiterating the rule first pronounced in Levine v. Levine, 262 Ala. 491, 494 (1955)). In 1945, Title 34 of section 29 of the Code of Alabama
established that "[w]hen the defendant is a nonresident, the other party to the marriage
must have been a bona fide resident of this state for one year next before the filing
of the bill, which must be alleged in the bill and proved…."
In this case, there is a question as to whether T~ established a bona fide residence
in Alabama when she instituted divorce proceedings against M~, given that the divorce
decree provided no information on her city or county of residence and only listed
"Ala." as her state of residence. And, if T~ was a resident, we do not have any information
regarding the length of her residency. Although M~ noted in his application to marry
E~ that T~ had served him with summons in Brooklyn, we do not have a copy of the summons.
Further factual development by the SSA, especially review of the allegations regarding
residence contained in the summons, should be undertaken to determine T~'s residency
status at the time of the divorce proceedings.
The issue of the validity of M~ and T~'s divorce is further complicated by the possibility
that their divorce decree may have been fraudulently granted by Judge M~. Charges
were brought against Judge M~ in 1964 for granting over 5000 divorces to nonresidents
in the late 1950s and early 1960s in Alabama. U.S. v. Edwards, 458 F.2d 875, 878 (5th Cir. 1972)(affirming the convictions of defendants Edwards, Huie, and Moore for conspiracy to defraud by use of mails and six counts of mail fraud in connection
with the provision of fraudulent divorces in Winston County, Alabama); see also Diamond v. Diamond, 501 Pa. 418, 420, n. 1 (1983). The fraudulent divorce decrees contained Judge M~'s
stamped or typed name, an embossed court seal, and certification by the Register in
Chancery attesting that the decree was on file and recorded in the records of the
Circuit Court of Winston County, Alabama. In actuality, however, they remained unfiled
and unrecorded. E~, 458 F.2d at 879-81. The United States Court of Appeals for the Fifth Circuit affirmed
the trial court's jury instruction that "if you find from the evidence that a divorce
decree from the Circuit Court of Winston County, or of the 25th Judicial Circuit of
Alabama was not signed by the Judge of that court and did not in some other way reflect
that it was the decision of the court and was not filed or enrolled in the records
of that court, then you would be justified in finding that such a decree was not a
valid divorce decree." Id. at 882 (emphasis in original)(citations omitted).
The relevant facts in the record are insufficient to determine whether the M~-T~ divorce
was fraudulently granted. First, M~ admitted that he did not appear in person in court.
Second, the divorce decree listed T~'s residence as "Ala" but included no other information
on residency for T~ or M~. Third, the divorce decree contained no signature by Judge
M~. Fourth, although the divorce decree contains a signature by Dorothy , State Registrar,
attesting to the embossment by official seal, the date of her signature appears to
be June 19, 1995. Finally, the divorce decree, on its face, appeared to have been
validly recorded in the Alabama Department of Health, Bureau of Vital Statistics.
Accordingly, further research must be conducted to ascertain whether Judge M~ fraudulently
granted a divorce to M~ and T~. We suggest that the SSA request official copies of
M~ and T~'s divorce decree from the Winston County Clerk at the Winston County Vital
Records and the Alabama Department of Public Health, Center for Health Statistics,
Office of Vital Records. The addresses are:
We recognize that the ultimate burden of proof lies with J~ to prove that she is entitled
to benefits as M~'s spouse. However, because the SSA, an uninvolved party to the M~-T~
marriage, questions the validity of the M~-T~ divorce and because the SSA has greater
investigative resources than J~, the courts of New York will likely find that the
SSA has the burden of conducting the substantial records searches required to determine
the validity of the M~-T~ marriage. Steele v. Richardson, 472 F.2d 49, 50 (2d Cir. 1972)(holding that "[g]iven the comparatively great investigative
resources of the Secretary and the apparently restricted means of appellant, it seems
more appropriate to require the agency to undertake the substantial record searches
necessary to negative the continued validity of [the prior marriage] … [particularly
as] the presumption favoring a later marriage assumes greater force where…the later
marriage is attacked, not by a putative first wife or children of the first marriage,
but instead by a party, like the Secretary, who is altogether a stranger to any domestic
relationship in question"); see also Conormon v. Sec. of HHS, No. CIV.80-757, 1983 WL 44298, at *6 (N.D.N.Y. April 13, 1983)(where plaintiff requested
that the Secretary conduct the considerable record searches required to prove the
continued validity of her husband's prior marriage, "[i]t was not the plaintiff's
responsibility to ferret out this information. It was the Secretary's obligation to
overcome the presumption of the validity of [plaintiff's] marriage"). It is important
to note, however, that if, after reasonable efforts, the evidence is inconclusive
or insufficient to establish the invalidity of M~'s divorce from T~, the presumption
of validity attaches to M~'s marriage to J~. J~, therefore, might be entitled to receive
spousal benefits as the wife of M~, assuming, of course, that she has sufficiently
demonstrated that her marriage to R~ was void.
c. Effect of New Jersey Case Law on Invalidation of Prior Ancient Divorces:
The Supreme Court of New Jersey has held that where the validity of an "ancient foreign
divorce" is challenged, equitable principles of fairness will apply to defeat invalidation.
Heuer v. Heuer, 704 A.2d 913, 921, 152 N.J. 226, 242 (1998)(holding that although husband provided
sufficient evidence to rebut the presumption of validity of his marriage, including
undisputed evidence of jurisdictional defaults associated with his wife's prior 1968
Alabama divorce, the doctrine of quasi-estoppel barred husband from attacking the
validity of marriage based on the invalidity of wife's prior divorce). The court cautioned
against "the human and legal problems that would result if those ancient foreign divorces
are found to be invalid many years later." Id. at 916, 152 N.J. at 233.
In determining whether a prior, ancient divorce will be found invalid, the court will
consider factors such as "(1) the length of time the parties were [subsequently] married,
(2) the acts undertaken by the parties that indicate they held themselves out to as
husband and wife, and (3) the good faith of the party who procured the first divorce."
H~, 704 A.2d at 920, 152 N.J. at 240-41 (citations omitted). Here, M~ was married to
J~ on July 21, 1962, and then to Ellen from August 7, 1965 to the present time. There
is nothing in the record to indicate that M~ did anything other than to hold himself
out to the public as married to J~ and later to Ellen. There is also no indication
that M~ was involved in fraud. The record is not sufficient, however, to determine
whether T~ acted in good faith in procuring the divorce.
Given the language of the H~ decision, a court in New Jersey would likely find that the divorce between T~ and
M~ was valid, even if additional factual development of the record conclusively determined
that there was jurisdictional error, a fraudulent grant of divorce, or fraud on the
part of T~ in pursuing a divorce in Alabama. If it turns out that M~ participated
in the fraud, especially if J~ was also involved, you should contact us to discuss
In conclusion, to receive spousal benefits on M~'s record, J~ must provide clear and
convincing evidence that R~ was validly married at the time of her marriage to him,
and that his prior marriage had never been terminated. If J~ can provide evidence
sufficient to establish that her marriage to R~ was void, the validity of M~'s divorce
from T~ must be considered as discussed above. If J~ is unable to carry her burden
of proof, the presumption of validity attaching to her marriage with R~ will continue,
and she cannot receive benefits as M~'s spouse.
Barbara L. Spivak
Chief Counsel, Region II
Assistant Regional Counsel